People v. La Fave , 156 Cal. Rptr. 63 ( 1979 )

ELKINGTON, J.

I concur—but with reluctance.

As indicated by Presiding Justice Racanelli, by a quirk of our procedural law, the People may appeal from an order granting probation after imposition of judgment and sentence, but may not appeal from such an order when imposition of judgment and sentence is suspended.

The result is that a trial judge who abuses his discretion in granting probation may capriciously allow to, or withhold from, the People an appeal from the order, depending simply upon the manner in which he makes it.

This exaltation of form over substance (see Civ. Code, § 3528) does violence to the needs of a fair and rational system of criminal justice. The courts are powerless to correct it, but the Legislature is not.